IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21209 of 2008(Y)
1. P.N.SANKARANARAYANAN, JUNIOR DEVASWOM
... Petitioner
2. S.RAJEEV, JUNIOR DEVASWOM OFFICER,
3. G.S. ANIL KUMAR,
4. K.K. BABU,
5. P. GIREESAN, JUNIOR DEVASWOM OFFICER,
6. K.N. BABU RAJ,
Vs
1. THE COCHIN DEVASWOM BOARD,
... Respondent
2. THE SECRETARY, COCHIN DEVASWOM BOARD,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :12/02/2009
O R D E R
P.R. RAMAN & P.S. GOPINATHAN, JJ.
= = = = = = = = = = = = = = = = = = = =
W.P.(C) NO. 21209 OF 2008
= = = = = = = = = = = = = = = = = =
DATED THIS, THE 12TH DAY OF FEBRUARY, 2009.
J U D G M E N T
Raman, J.
Petitioners, six in numbers, were Last Grade Servants working in the
Cochin Devaswom Board, possessing the basic qualification of SSLC and
five years of continuous service in the establishment for being considered
for promotion to the post of Devaswom Assistant. They were promoted as
Lower Division Clerk based on an executive order – Ext.P3 produced in the
case. However, their promotions were not regularised at that time.
Subsequently, D.B.A. 22/2008 was filed seeking permission to create 20
new Devaswoms which are to be managed by Junior Devaswom Officers in
the cadre of LDC and to create 20 posts of LDC and to fill up the posts of
Lower Division Clerk lying vacant by giving promotion to 45 Last Grade
employees relaxing the Recruitment Rules including the six persons who
were already promoted and to give category change to three employees and
to create four posts of Revenue Inspectors. The “six Last Grade
employees” referred to therein are the petitioners herein. That matter was
WP(C) 21209/2008 :2:
referred to the Ombudsman, who subsequently filed Report No. 19.
As per the said report, it is reported that the six persons mentioned in the
relief portion of the application had earlier approached this Court and
obtained a direction to consider their promotion from Last Grade Service
and that this Court by Annexure-V order referred to in the said report,
directed such consideration by the Devsaswom Board. Anexure V therein is
the judgment in WP(C) 36137/2007. After considering the representation
made by the petitioners, the Board decided to promote them as L.D. Clerks.
But according to the Ombudsman these six persons could not have been
promoted since there were seniors to them in the last grade service who
could also claim similar benefit and it was pointed out that while giving
promotion to these six persons, the Board has relaxed the test qualification.
According to the Ombudsman, when Rules prescribe test qualification and
in the absence of any decision to exempt them from test qualification, it
was not possible to promote any person against the Rules especially when
admitted seniors are denied such benefit. Therefore, it was reported that the
promotions given to the petitioners are not in accordance with the rules.
This Court accepted the report as regards this and as regards the creation of
20 posts also since the Ombudsman had already recommended, this Court
gave necessary directions to create 20 new posts and to fill up the same on a
WP(C) 21209/2008 :3:
provisional basis and regarding the other vacancies to take steps for filling
up the posts on regular basis in accordance with law. Based on such
directions issued by this Court in DBA 22/2008, petitioners were in effect
reverted from the posts of L.D.C.; but were allowed to continue on
provisional basis with special allowances till regular appointments are made
as directed. Petitioners have therefore, come before this Court by filing the
present writ petition.
2. Evidently, petitioners were not heard either when the directions
were so issued in DBA 22/2008 or by the Ombudsman, before submitting
the report before this Court. In such circumstances, we, by an interim
direction dated 12th December, 2008, referred the matter to the Ombudsman
for a fresh consideration of the matter and to file a report after hearing the
petitioners also. Pursuant thereto, the Ombudsman has filed Report No.
3/2009. It is pointed out that the earlier report was filed on the impression
that the promotion given to these six persons, granting relaxation of the
rules, was overlooking the claims of the other two seniors who are similarly
situated. But it was pointed out by the Devaswom that in DBA 22/2008
filed earlier, the proposal was to promote not only these six persons, but
also the two senior persons above the petitioners, irrespective of the date on
which they have to be promoted. Therefore, the Ombudsman has reported
WP(C) 21209/2008 :4:
that in case the seniors are also given promotion, then there may not be any
objection in giving promotion to the petitioners.
3. We have heard the parties. Ext.P3 produced by the petitioner is
an executive order. It is admitted that Rules were framed only in 2004
earmarking 25% vacancies for the Last Grade Employees for promotion
and till then there were no statutory rules. So long as there were
vacancies in the post of L.D.C. to be filed up by promotion from Last Grade
Servants and if the petitioners are qualified except the text qualification
which was introduced for the first time only on 1.1.2004, then normally they
cannot be denied the right of being promoted to the next post, provided
there are vacancies. It is admitted that there were vacancies. If that be so,
while giving promotion to the petitioners, the right of their seniors shall
not in any way be affected. But now that they are also given promotion as
in the case of the petitioners, then the proposal as made for regularizing the
promotion given to the petitioners without affecting their seniority can be
accepted. In the circumstances, we recall the order in DBA 22/2008 to
the extent of passing this order in the matter of promotion of the petitioners
as indicated above.
In the result, the writ petition is disposed of directing the Cochin
Devaswom Board to pass appropriate orders regularising the promotion of
WP(C) 21209/2008 :5:
the petitioners along with their seniors. While giving such regularisation,
the interse seniority be maintained.
P.R. RAMAN, JUDGE.
P.S. GOPINATHAN, JUDGE.
KNC/-